Scholarship Repository University of Minnesota Law School Articles Faculty Scholarship 1984 The Role of the Attorney in Estate Administration Robert Stein University of Minnesota Law School, [email protected] Ian Fierstein Follow this and additional works at: https://scholarship.law.umn.edu/faculty_articles Part of the Law Commons Recommended Citation Robert Stein and Ian Fierstein, The Role of the Attorney in Estate Administration, 68 MINN. L. REV. 1107 (1984), available at https://scholarship.law.umn.edu/faculty_articles/441. This Article is brought to you for free and open access by the University of Minnesota Law School. It has been accepted for inclusion in the Faculty Scholarship collection by an authorized administrator of the Scholarship Repository. For more information, please contact [email protected]. The Role of the Attorney in Estate Administration Robert A. Stein* and Ian G. Fierstein** TABLE OF CONTENTS INTRODUCTION ............................................ 1108 I. THE PROBATE BAR ................................. 1114 A. CORRELATION BETWEEN FIRM AND ESTATE SIZE. 1114 B. CHARACTERISTICS OF THE PROBATE BAR ......... 1119 C. RELATION BETWEEN ESTATE ADMINISTRATION AND ESTATE PLANNING ............................ 1121 II. SPECIALIZATION ................................... 1123 A. GENERAL CHARACTERISTICS OF SPECIALIZATION.. 1124 B. FORMAL RECOGNITION OF SPECIALIZATION ........ 1132 C. THE ABA APPROACH TO SPECIALIZATION IN PROBATE AND TRUST LAW ......................... 1137 III. THE NEED FOR LEGAL SERVICES IN ESTATE ADMINISTRATION .................................. 1145 IV. SOURCES OF ESTATE ADMINISTRATION BUSINESS ............................................ 1148 V. SERVICES PERFORMED BY THE ATTORNEY IN ESTATE ADMINISTRATION .................... 1151 VI. THE ATTORNEY AS PERSONAL REPRESENTATIVE .................................. 1163 VII. ATTORNEY FEE CHARGING ....................... 1172 A. FEE CHARGING APPROACHES IN GENERAL ........ 1173 B. FEE CHARGING IN ESTATES SELECTED FOR STUDY ............................................. 1179 C. REASONABLENESS OF FEES CHARGED ............. 1184 VIII. COMMUNICATION AMONG THE ATTORNEY, PERSONAL REPRESENTATIVE, AND BENEFICIARIES ..................................... 1193 * Dean and Professor of Law, University of Minnesota Law School, and Affiliated Scholar, American Bar Foundation. ** Attorney, Washlow, Chertow, & Miller, Chicago, Illinois. 1107 1108 MINNESOTA LAW REVIEW [Vol. 68:1107 IX. CLIENT SATISFACTION WITH ATTORNEY SERVICES IN ESTATE ADMINISTRATION ....... 1205 X. CONCLUSION ........................................ 1225 Appendix I ................................................... 1227 Appendix II .................................................. 1229 INTRODUCTION Estate administration is the process by which the affairs of a decedent are settled. During the course of administration of an estate, property owned by a decedent is collected and inven- toried, debts and taxes are paid, and property is distributed to those having a right to succeed to it.1 Controversy has surrounded estate administration in re- cent years.2 Critics of the process have advised the public to "avoid probate" because of allegedly high fees and unreasona- ble delays in settling estates; 3 the legal community has re- sponded with various reform proposals. 4 The National Conference of Commissioners on Uniform State Laws and the American Bar Association (ABA) proposed a Uniform Probate 1. In this Article, "estate administration" and "probate administration" will be used interchangeably. Technically, probate refers to "the procedure by which a transaction alleged to be a will is established judicially as a valid testa- mentary disposition." J. RrrCHIE, N. ALFORD & R. EFFLAND, CASES AND MATERI- ALS ON DECEDENTS' ESTATES AND TRUSTS 6-7 (1971). Administration is a more general term and "refers to the conduct of the personal representative of an in- testate, testator, or testatrix in collecting assets of the estate, paying the credi- tors and distributing the residue of the property to those entitled to receive it." Id. (emphasis in original). 2. The controversy, which reached its peak during the late 1960s and early 1970s, received much attention in the popular press. See, e.g., Bloom, Time to Clean Up Our Probate Courts, READER'S DIG., Jan. 1970, at 112; Bloom, The Mess in Our Probate Courts, READER'S DIG., Oct. 1966, at 102; Named in a Will? It Can Take Years to Collect, Bus. WK., June 3, 1972, at 71; Let's Rewrite the Pro- bate Laws, CHANGING TIMES, Jan. 1969, at 39. Although the controversy appar- ently subsided after some states adopted the Uniform Probate Code (U.P.C.) and other states initiated similar reforms, see, e.g., Bloom, At Last: A Way to Settle Estates Quickly, READER'S DIG., Sept 1972, at 193; Settling an Estate Could Be Fasterand Cheaper, CHANGING TIMES, Nov. 1972, at 6, it still flares up occasionally, see, e.g., Flanagan, Inheritance: Where There's A Will There's A Wait; VOGUE, Apr. 1978, at 166; Lane, Will Taxes and Legal Fees Gobble Up Your Life's Work?, FARM J., Oct. 1976, at LA; Quinn, Cutting Probate Costs, NEWSWEEK, June 23, 1980, at 66. 3. See, e.g., N. DACEY, How TO Avom PROBATE (1965). 4. In the last fifteen years, virtually every state has, to some extent, re- vised its probate code to simplify and modernize probate procedures and estate administrations. See, e.g., 1979 Legislation Affecting Trusts and Estates, 15 REAL PROP., PROB. & TR.J. 241 (1980); 1974 Legislation on Trusts and Estates, 10 REAL PROP., PRoB. & TR.J. 74 (1975); State Legislation Affecting Trusts and Es- tates, 1 REAL PROP., PROB. & TR.J. 107 (1966). 1984] THE ESTATE ADMINISTRATION ATTORNEY 1109 Code (U.P.C.) which several states have adopted.5 Unfortu- nately, the critics, reformers, and defenders of the estate ad- ministration process have had access to little empirical data to buttress their positions. This Article presents the findings of an empirical study of estate administration undertaken to fill that void.6 5. The Joint Editorial Board for the Uniform Probate Code recognizes 14 states as having enacted the substance of U.P.C. the regarding succession law and procedure: Alaska, Arizona, Colorado, Idaho, Maine, Michigan, Minnesota, Montana, Nebraska, New Jersey, New Mexico, North Dakota, Pensylvania, and Utah. In addition, Florida, Hawaii, Illinois, Missouri, Oregon, and Wisconsin have enacted probate codes that show strong U.P.C. influence. Other states that have revised their probate codes by adding provisions that were inspired by the U.P.C. are: Alabama, Iowa, Kentucky, Maryland, Massachusetts, Texas, Virginia, Washington, and West Virginia. See 1984 ANNUAL REPORT OF AcTIVI- TIES OF JOINT EDITORIAL BOARD FOR THE UNIFORM PROBATE CODE; 1979 Legisla- tion Affecting Trusts and Estates,supra note 4, at 241; 1978 Legislation Affecting Trusts and Estates, 14 REAL PROP., PROB. & TA. J. 212, 212 (1979). South Dakota enacted the U.P.C. in 1974, but repealed it two weeks after it became effective. Id. The Wyoming legislature passed the U.P.C. twice, but the governor vetoed it both times. Id. 6. Primary financial support for the study was provided by the American Bar Foundation. A number of persons have made substantial contributions to this study. Dean Laurence M. Katz of the University of Baltimore Law School, Professor Lennart V. Larson of Southern Methodist University Law School, Professor James E. Leahy of California Western School of Law, and Dean Wil- liam Schwartz of Boston University Law School served as study directors in their respective states. At the American Bar Foundation, the following staff members contributed to the study: Jeannette M. Boulet, Clara N. Carson, Andy Hoover, Elizabeth J. Reed, Katherine J. Rosich, Phyllis A. Satkus, Dietmar Starke, and Kenneth Wil- son. Ralph H. Miller, Esq., of the Utah bar, served as chairman of a Study Advi- sory Committee and as liaison with the American Bar Association Section of Real Property, Probate and Trust Law. Other members of the Advisory Com- mittee are: Luther J. Avery, Esq., of the California bar, Albert S. Barr III, Esq., of the Maryland bar, Wm. Stansel Belcher, Esq., of the Florida bar, Winston T. Brundige, Esq., of the Maryland bar, A. James Casner, Esq., of the Massachu- setts bar, Harrison K. Chauncey Jr., Esq., of the Florida bar, Hon. Harold R. Clark, of Florida, Everett A. Drake, Esq., of the Minnesota bar, Charles E. Early H, Esq., of the Florida bar, J. Thomas Eubank Jr., Esq., of the Texas bar, Dean Henry A. Fenn, of the Florida bar, Allan H. Fisher Jr., Esq., of the Maryland bar, K. Bruce Friedman, Esq., of the California bar, Ronald E. Gother, Esq., of the California bar, Max Gutierrez Jr., Esq., of the California bar, G.J. Hauptfuhrer Jr., Esq., of the Pennsylvania bar, Minor L. Helm Jr., Esq., of the Texas bar, Richard H. Herold, Esq., of the New Jersey bar, Daniel H. Honemann, Esq., of the Maryland bar, Thomas A. Howeth, Esq., of the Texas bar, John A. Jones, Esq., of the Florida bar, Charles J. Kickham, Esq., of the Massachusetts bar, William S. McClanahan, Esq., of the California bar, Clark W. McGants, Esq., of the District of Columbia bar, Malcolm A. Moore, Esq., of the Washington bar, George N. Nofer, Esq., of the Pennsylvania bar, Wesley L. Nutten III, Esq., of the California bar, Ronald A. Offret, Esq., of the Alaska bar, Matthew S. Rae Jr., Esq., of the California bar, William E. Remy, Esq., of the Texas bar, John E. Rogerson, Esq., of the Massachusetts bar, Rudolph 0. Schwartz, Esq., of the Wisconsin bar, J.